28 Jul 2023
The Court imposed a $500,000 pecuniary penalty because the encumbrance was a deliberate attempt to prevent competitive entry and thus serious, but the breach was materially less serious than acquisition-based anticompetitive conduct given no commercial gain, the covenant's unenforceability, prompt cooperation and remedial action by NGB; $500,000 was within the appropriate range.
11 Jul 2023
The Taylor Trustees, as unsuccessful parties, were ordered to pay costs to Chandler Farms on a category 2B basis with disbursements to be fixed by the Registrar; increased costs were refused because the Trustees had reasonable justification to decline the settlement offer and seek a final judicial determination; the applicant's claimed amount was reduced by $4,780 because Item 32 does not apply to originating applications and Item 40 already provides for 1.5 days' preparation of written submissions.
17 May 2023
The Court upheld the High Court: clause 23 did not prevent the respondents registering covenants; appellant gave informed, voluntary consent after legal advice and elected to proceed for commercial benefit; no duress or abuse of power proved; on facts it was not just and equitable to extinguish or modify the covenants under s 317(1)(f).
8 May 2023
The court found, on the evidence, that the covenants were registered against Lot 3 due to a drafting error and that all parties intended Lot 3 to receive the benefit but not bear the burden; s317(1)(d) and s317(1)(f) were engaged because modification would not substantially injure the Taylor trustees and it was just and equitable to restore the parties' intended positions; accordingly the covenant was modified to exclude Lot 3 and the second covenant extinguished; no compensation ordered.
30 Mar 2023
Second counsel was not justified because the trial was not complex and the factual and expert evidence was within the normal range; investigation by the defendants' surveyor into restrictive covenants was reasonable and prudent, but a 50% reduction of the surveyor fee was appropriate because the surveyor was not called and those issues were not ultimately before the Court; accordingly costs of $23,900 and disbursements of $20,723.77 are awarded to the defendants.
28 Feb 2023
Section 45(2) protection applies to costs in proceedings to which a legal aid grant attaches, including relevant prior steps unless a costs liability has already crystallised; the defendants failed to establish the requisite exceptional circumstances under s45(2); accordingly no costs order may be made against the legally aided plaintiff, although under s45(5) the court specifies the costs that would have been ordered had aid not applied (2B scale plus disbursements).
14 Nov 2022
The Court ordered division in kind under s 339(1) and (4) on the parties' agreed terms because (a) expert evidence and valuers agreed freeholding with registered height covenants would enhance saleability and value, (b) unimpeded views from 121B were not a feature attaching to the land given the existing cross-lease development right over 121E and therefore were not a weighty s 342(f) consideration, and (c) 121 Ltd failed to establish compensable detriment or unfairness warranting refusal of division or payment under s 343(a).
21 Oct 2022
Although an arguable breach of cl 38.1 existed, the interim injunction was discharged because Park Lane failed to establish irreparable or non-quantifiable loss that could not be adequately compensated by damages; the balance of convenience and overall justice (by a small margin) favored defendant due to prejudice to prospective purchasers and completion of sale, and the strikeout application was dismissed because the plaintiff's claim was not so untenable that it could not possibly succeed.
20 Jul 2022
Clause 23 must be read in context and permitted the vendors to require restrictive covenants; the plaintiff received independent legal advice and freely elected to accept the covenants to preserve the purchase (no illegitimate pressure/duress); the vendors did not exercise any contractual power so unreasonably or in bad faith as to justify overturning; removal or modification under s 317 PLA 2007 was not just and equitable on the evidence, therefore the application to remove covenants is dismissed.
17 Jun 2022
PLB does not have enforceable rights under the restrictive covenants because it is not a named covenantee, and clause 25 does not convert the covenants into contractual obligations owed to PLB; however PLB has an arguable contractual claim under clause 38 (consent required before on-sale prior to completion) and so the strike-out application was dismissed with leave to re-plead; an interim injunction to restrain sale was continued until further order on specified conditions (service on other affected landowners and purchaser, amended pleading, and financial information) because PLB raised a s…